Trial Practice Note: Stipulations of Fact

The district court ruling in Watada v. Head, is worthy of a trial practitioner's reading as it relates to Stipulations of Fact, confessional stipulations, and mistrials. The difference between a stipulation of fact for a guilty plea, and a confessional stipulation where there is a not guilty plea doesn't come up very often. Watada illustrates one scenario where the stipulation of fact was intended to be used on the merits of a not guilty plea, not as a basis to support providency of a guilty plea. Depending on the nature of the stipulation it may be entirely proper for the military judge to conduct a Bertelson inquiry (3 M.J. 314 (C.M.A. 1977); and see also United States v. Hagy, 12 M.J. 739, 746 (A.F.C.M.R. 1981); United States v. Kepple, 27 M.J. 773 (A.F.C.M.R. 1988) ). Another scenario possibly leading to a Bertelson issue would be when there is a pretrial agreement requiring the accused to plead guilty to a lesser included offense, there is a required stipulation of fact, and the prosecution is proceeding on the greater offense and the agreement allows use of the stipulation.

The prosecution and defense in Watada seem to have made a conscientious and proper effort to craft a stipulation of fact to avoid the prosecution having to bring a boatload of witnesses and documents to trial. In effect they were attempting some judicial economy while allowing the parties and the members to focus on the real issue. The military judge interjected the concern about the use of the stipulation and the prosecution ultimately requested a mistrial. As the district court points out, neither the military judge nor the prosecution considered alternatives to the drastic remedy of a mistrial.

So, careful drafting, focus on the actual use and effect of the stipulation, and (usually the prosecution) consider alternatives to a mistrial.

The district court in Watada issued a preliminary injunction. The case still has to be litigated on the merits, so there's not absolute guarantee Watada will win. But recollect that when granting the injunction the court has to consider -- and has amply documented it's consideration in Watada -- of whether the petitioner is likely to succeed.